BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130017251 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge to honorable.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 24 months and 8 days of service with no other adverse actions.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 23 June 1981.

3.  His records show he received counseling for failing to report to his appointed place of duty at the time prescribed on more than one occasion.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 16 March 1983, for failing to go at the time prescribed to his appointed place of duty on 7 and 8 March 1983 and for absenting himself from his unit without authority on 11 March 1983;

	b.  on 17 May 1983, for failing to go at the time prescribed to his appointed place of duty on 11 May 1983;

	c.  on 28 May 1983, for breaking restriction on 21 May 1983 and for absenting himself from his unit without authority for the period 21 through 26 May 1983; and

	d.  on 22 June 1983, for breaking restriction on 21 June 1983 and for failing to go at the time prescribed to his appointed place of duty on 22 June 1983.

5.  On 7 June 1983, the applicant was notified of the unit commander's intent to initiate separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  The commander stated the action was based on the applicant's record of unsatisfactory performance and noted the applicant had received numerous counseling statements due to his repeated tardiness and failure to report for work.  The commander also noted the applicant had received NJP for being absent without leave (AWOL) for 5 hours and once again for 5 days.

6.  On 14 June 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and the rights available to him.  He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  The applicant elected to make a statement in which he submitted that he felt he deserved an honorable discharge primarily based upon his conduct from his previous unit.

7.  On 20 June 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.

8.  On 5 July 1983, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years and 8 days of creditable active military service with lost time for the period 21 through 25 May 1983.

9.  There is no evidence that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  An honorable or general discharge was considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

The available evidence shows his duty performance was tarnished by a history of negative counseling and instances of NJP which included being AWOL.  Accordingly, his chain of command initiated separation action against him.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors which would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  __X______  _X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_______________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130017251



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ABCMR Record of Proceedings (cont)                                         AR20130017251



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